HKSAR v. Ng Hon Keung

CACC 211/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 211 OF 2011

(On Appeal From High Court Criminal Case No. 324 of 2010)

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BETWEEN

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Before : Hon Stock VP, Yeung VP and Cheung JA in Court

Date of Hearing : 30 November 2011

Date of Judgment : 30 November 2011

Date of Reasons for Judgment : 26 January 2012

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court) :

1.The applicant pleaded guilty to two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap. 134. He was sentenced by Maggie Poon J to a total term of 14 years’ imprisonment. He applied for leave to appeal against sentence.

2.At the conclusion of the hearing we granted the applicant leave to appeal, treated the application as the appeal proper, quashed the sentence and imposed a sentence of 12 years’ imprisonment which is calculated as follows :

First charge : 10 years’ imprisonment. Second charge : Eight years and eight months’ imprisonment, two years of which are to be served consecutively to the first sentence of 10 years’ imprisonment.  We now give reasons for our judgment.

Facts

3.The dangerous drugs under the two charges were 839.69 grammes and 818.47 grammes of ketamine.  The facts showed that on 1 April 2010 a team of Police officers carried out an anti-drugs operation in Shek Yam East Estate.  They observed the applicant handed over a brown paper bag to a 17-year-old youth.  The Police later intercepted the youth and found that the brown paper bag which the youth tried to throw away when he was stopped by the Police contained 839.69 grammes of ketamine.

4.The Police also followed the applicant, who after handing the brown paper bag to the youth, eventually arrived at a village in Lok Ma Chau.  He was then arrested by two Police officers. They found in the bag he was carrying another packet of 818.47 grammes of ketamine.

5.In a video-recorded interview the applicant admitted that he was a drug courier.  He had first delivered a packet of dangerous drugs to someone at Shek Yam East Estate and he was also going to deliver another packet of drugs to someone at Lok Ma Chau.  He claimed he received $800 for delivery of the drugs. 

The sentence

6.The Judge first considered that the total quantity of drugs of approximately 1.7 kilogrammes would attract a starting point of 16 years’ imprisonment.  In respect of the individual charges the Judge adopted 13 years’ imprisonment as the starting point.  She discounted them by one third to reflect the guilty plea and arrived at a sentence of eight years and eight months’ (104 months’) imprisonment.  She then enhanced the first sentence of eight years and eight months’ imprisonment by 38% (three years and four months) under Section 56A of the Ordinance on the basis that the applicant had used a minor to traffic in dangerous drugs.  This arrived at a sentence of 12 years’ (144 months’) imprisonment.   The Judge considered the total sentence for the two charges should be 14 years’ imprisonment.  She ordered two years of the eight years and eight months’ imprisonment under the second charge to be served consecutively to the first sentence of 12 years’ imprisonment.

Trafficking in ketamine

7.In Secretary for Justice v. Hii Siew Cheng, CAAR 7/2006 this Court Ma CJHC (as he then was), Stuart-Moore VP and Stock JA (as he then was) gave tariff guidelines for trafficking in ketamine. The relevant bands of sentence for the purpose of this appeal are :

600 to 1000 grammes : 12 to 14 years;

over 1000 grammes : 14 years upwards.

8.In the present case as the total quantity of ketamine seized was 1.7 kilogrammes, the 16 years’ imprisonment considered by the Judge as the starting point for the total quantity of drugs was appropriate.   In respect of the individual quantity of drugs, the starting point of 13 years’ imprisonment adopted by the Judge before the one-third discount for plea was also appropriate.  What calls for discussion is the enhancement and the total sentence after enhancement.

Enhancement of sentence

9.Under Section 56A(1) and (2) of the Ordinance the Court is entitled to enhance the sentence of an adult convicted of, among other things, trafficking in dangerous drug if there is information that the commission of the offence involves a minor.  The information may relate to the following :

a)    the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;

b)     a person obtaining by whatever means a dangerous drug from a minor;

c)     provision by a person to a minor of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug;

d)     a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;

e)     use of a minor in assisting the operation or management of premises which are used as a divan or for unlawful trafficking, manufacturing, or storage of a dangerous drug.

(Section 56A(2)(a)–(e))

10.The statutory provision was introduced in 1997 in response to the rapid increase (from 170 to 344) between 1991 and 1995 in the number of young persons arrested for trafficking and manufacturing dangerous drug (see Hansard 29 January 1997). 

11.As this Court observed in HKSAR v. Wong Kwok Hung, CACC 225/2002(Cheung JA and Pang J) the rationale behind the enhancement provision is to send out a clear message that drug traffickers will be expected to get a heavier sentence if they exploited the youth in the commission of this crime.  In that case the Court reduced an enhancement of 75% to 50% in respect of a defendant who trafficked in small quantities of Ecstasy (i.e. 0.27 grammes).  The applicant gave the drugs to another defendant who was aged 17.  The applicant then offered to sell the drugs to a customer and he ordered the young co-defendant to give the drugs to the customer.  The starting point of four months’ imprisonment was enhanced to six months by this Court. 

12.In HKSAR v. Chan Ka Shing (CACC 64/2011) this Court (Yeung JA (as he then was) and Yuen JA) enhanced a sentence of 13 years’ imprisonment for trafficking in cocaine which involved a minor by two years.

13.In HKSAR v. Lam Kam Kwong [2002] 1 HKC, Deputy Judge McCoy S.C. enhanced a sentence of 24 years’ imprisonment for trafficking in heroin by two years.  The defendant recruited a 16-year-old youth to transport the drugs.

14.This Court raised the issue of whether as a pre-requisite for enhancement the defendant knows that he is dealing with a minor.  Minor is not defined in the Ordinance. Under the Interpretation and General Clauses Ordinance (Cap.  1), an adult is a person who attains the age of 18.  So anyone who is below 18 is a minor.  The applicant said that he only met the minor for the first time when he delivered the drugs to him.  He did not know of his age.

15.This is a matter of statutory construction.  The provision is not related to the ingredient of an offence where the issue of knowledge is usually relevant.  Section 56A(2) provides for enhancement when a minor is involved in the commission of the specified offence and identifies different situations in which the youth may be involved.  Neither section 56A(2) itself nor section 56A(2)(a), (b) and (e) imposes any requirement on the part of the defendant of knowledge of the age of the minor.  Although Section 56A(2)(d) refers to the defendant ‘intentionally’ employing a minor which obviously requires knowledge, in the same subsection it also provides for the defendant ‘unintentionally’ employing a minor.  In our view the provision under section 56A(2) will come into operation and the Court can enhance the sentence if a minor is involved in the commission of the offence irrespective of whether the defendant knows that he is dealing with a minor or not.  Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence.  It will not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case.  Where the original sentence, like the present one, is already a lengthy one, a sense of proportion must be considered.  To simply apply a percentage figure may result in an excessive total sentence.  In our view the three years and four months’ increase adopted by the Judge is too high. 

Totality

16.Further the sentence of 14 years’ imprisonment after enhancement is clearly excessive. It represents a notional starting point of 21 years’ imprisonment when the starting point for the total quantity is 16 years.  This in effect means a notional five-year increase from 16 years.

Conclusion

17.In the present case the youth was just a few months short of his 18^th birthday.  In our view in the circumstances of the case, the appropriate enhancement should be one year and four months from the sentence of eight years and eight months after plea.  This will be a sentence of ten years’ imprisonment.  The total sentence for the two charges should be 12 years’ imprisonment.  Two years of the second sentence of eight years and eight months should be served consecutively to the first sentence of ten years’ imprisonment.

Mr. Robert K Y Lee, Senior Assistant Director of Public Prosecutions of Department of Justice for the Respondent

Applicant, in person, present